Henmi Apartments, Inc. v. Sawyer, 8243

• Decision Date: 13 December 1982
• Docket Number: No. 8243,8243
• Citation: 3 Haw.App. 555,655 P.2d 881
• Parties: HENMI APARTMENTS, INC. and James T. Henmi, Plaintiffs-Appellees, v. Stephen SAWYER and Harriet Bouslog Sawyer, Defendants-Appellants. Stephen SAWYER and Harriet Bouslog Sawyer, Plaintiffs-Appellants, v. James T. HENMI, Tsurue Henmi, Henmi Apartments, Inc., Defendants-Appellees, and State of Hawaii, City and County of Honolulu, Defendants.
• Court: Hawaii Court of Appeals

Page 881

655 P.2d 881

3 Haw.App. 555

HENMI APARTMENTS, INC. and James T. Henmi, Plaintiffs-Appellees, v. Stephen SAWYER and Harriet Bouslog Sawyer, Defendants-Appellants.

Stephen SAWYER and Harriet Bouslog Sawyer, Plaintiffs-Appellants, v. James T. HENMI, Tsurue Henmi, Henmi Apartments, Inc.,

Defendants-Appellees, and State of Hawaii, City

and County of Honolulu, Defendants.

No. 8243.

Intermediate Court of Appeals of Hawai'i.

Dec. 13, 1982.

Syllabus by the Court

1. A valid unregistered easement on Land Court registered land may be implied under certain facts and circumstances. Whether an implied easement exists depends on the intent of the parties as shown by all the facts and circumstances under which the conveyance was made.

2. Where there is nothing to show that the parties intended them to be mere personal rights, easements for pedestrian and utility purposes which are appropriate and useful adjuncts of dominant lots are appurtenant to the dominant lots and run with them.

3. The party alleging abandonment of an easement must prove it by clear and unequivocal evidence of decisive and conclusive acts. A mere showing of disuse does not satisfy the burden.

4. The right to partition may be waived by express or implied contract. However, that waiver will not affect subsequent purchasers unless the original parties intended that the agreement run with the land and the subsequent purchaser for value against whom the burden is to be enforced had notice.

Thomas E. Cook, Honolulu (George W. Brandt, Honolulu, with him on the briefs; Lyons, Hagerman & Brandt, Honolulu, of counsel), for defendants-appellants.

Ton Seek Pai, Honolulu (Okumura, Takushi, Funaki & Wee, Honolulu, of counsel), for plaintiffs-appellees.

Before BURNS, C.J., and HEEN and TANAKA, JJ.

BURNS, Chief Judge.

On October 16, 1980, appellants Stephen and Harriet Sawyer ("Sawyers") sued appellees James and Tsurue Henmi ("Henmis"), Henmi Apartments, Inc., ¹ the State of Hawaii, and the City and County of Honolulu, seeking partition and judicial sale under Chapter 668, HRS (1976) of certain parcels of land owned in common by the Sawyers and the Henmis. The State of Hawaii and the City and County of Honolulu subsequently filed disclaimers of interest.

James Henmi and Henmi Apartments, Inc., in turn filed an action for declaratory relief and for injunction against the Sawyers, claiming a pedestrian and utility easement over the parcels in question and asking that the Sawyers be enjoined from interfering with their use thereof.

After consolidation and a bench trial, the lower court ruled in favor of the Henmis. The Sawyers appeal. We affirm the existence of the easement and reverse the denial of the request for partition.

On March 17, 1924, Hugo Knut Hope ("Hope") filed a subdivision map with the Land Court, subdividing a parcel of land in the Punchbowl area of Honolulu into Lots 1 through 6, inclusive.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

On July 23, 1924, Hope resubdivided Lot 3 into Lots 3-A, 3-B, and 3-C.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Lot 3-B is 78 feet in length and Lot 5 is 100.4 feet in length. Both lots are 7.3 feet wide.

On October 30, 1924, Hope conveyed Lot 2 to Herman Bahr together with one-third interest in Lot 3-B and one-fifth interest in Lot 5. By mesne conveyances, Lot 2 and said fractional interests in Lots 3-B and 5 have devolved to the Henmis, as trustees.

On April 15, 1961, the Sawyers purchased Lots 1, 3-A, 3-C, four-fifths interest in Lot 5, and two-thirds interest in Lot 3-B. They bought Lot 4 on December 18, 1961 and Lot 6 on November 29, 1962.

When James Henmi's parents and predecessors-in-title, Heima and Yoneko Henmi, purchased Lot 2 and the fractional interests in Lots 3-B and 5, sewer and water lines ran between Lot 2 and Spencer Street under Lots 3-B and 5. There was also a concrete walkway on Lots 3-B, 5, and 2 for passage between Spencer Street and the south boundary of Lot 2.

In 1967 and 1968, James Henmi demolished Lot 2's residential structure, replaced it with an apartment building, and replaced the existing sewer and water lines under Lots 3-B and 5 with larger-sized lines. The concrete surface of the walkway was removed and the walkway was blocked by large exposed pipes. In 1980 the Henmis retained a contractor to do the work necessary to make Lots 3-B and 5 accessible as a walkway to occupants of Lot 2 but the work was not completed because the Sawyers protested.

Since 1934, the Hawaii State Tax Department has designated Lots 3-B and 5 as rights-of-way and have nominally valued them at one dollar for real property tax purposes.

The court below found that Hope and his grantees had created an easement over Lots 3-B and 5 for utility and pedestrian purposes in favor of Lot 2 and the other dominant lots. It further found that the Henmis did not abandon their right-of-way and always intended to repair the walkway. However, it held that Lots 3-B and 5 are not subject to partition.

On appeal, the Sawyers argue:

1) That the trial court erred in declaring that Lots 3-B and 5 are subject to an implied easement for right-of-way and for sewer and water line purposes, and

2) That the trial court erred in ruling that Lots 3-B and 5 are not subject to partition.

I.

We recognize that HRS § 501-82 (1976) ² evidences a policy against unregistered encumbrances upon Land Court registered land. However, we disagree with the Sawyers' contention that such encumbrances may never arise. It is well-settled in this jurisdiction that a valid unregistered easement on Land Court registered land may be implied under certain facts and circumstances. In Re Yamaguchi, 39 Haw. 608 (1952); Paterson v. Rush, 34 Haw. 881 (1938). Whether an implied easement exists depends on the intent of the parties as shown by all the facts and circumstances under which the conveyance was made. 25 Am.Jur.2d Easements and Licenses § 24 (1966).

The appellate standard of review of the trial court's finding of intent is the clearly erroneous standard. Rule 52(a), HRCP. Findings of fact are clearly erroneous unless supported by substantial evidence in the record. Shoemaker v. Takai, 57 Haw. 599, 561 P.2d 1286 (1977). Substantial evidence is credible evidence which is of sufficient quantity and probative value to justify a reasonable man in reaching a conclusion. In Re Charley's Tour & Transp. Inc., 55 Haw. 463, 522 P.2d 1272 (1974). The credibility of the testimony is for the trial court to determine. Shinn v. Yee, Ltd., 57 Haw. 215, 553 P.2d 733 (1976). In a bench trial, even though the findings are supported by "substantial evidence," they may be set aside on appeal if the appellate court decides that they are against the clear weight of the evidence or otherwise reaches a definite and firm conviction that a mistake has been made. DeFries v. Association of Owners, 57 Haw. 296, 555 P.2d 855 (1976); State v. Patterson, 58 Haw. 462, 571 P.2d 745 (1977); Hawaii Builders Supply v. Kaneta, 42 Haw. 111 (1957); 9 Wright & Miller, Federal Practice and Procedure: Civil § 2585 (1971); 2 Wright, Federal Practice and Procedure: Criminal § 374 (1969). See Yorita v. Okumoto, 3 Haw.App. 148, 643 P.2d 820 (1982); n. 11 of Clarkin v. Reimann, 2 Haw.App. 618, 638 P.2d 857 (1981).

After examining the record, we conclude that the trial court's finding of intent in this case is not clearly erroneous, and we have no definite and firm conviction that a mistake has been made.

The subdivision maps filed in the Land Court in 1924 by Hope are substantial evidence of his intent to burden Lots 3-B and 5 with an easement in favor of Lot 2.

[W]here the owner of a tract lays out streets upon a map not for purposes of description or location, but for the purposes of establishing private streets and sells the subdivided lots with reference to such map, he thereby creates by implication a private easement in favor of lot owners upon the streets thus declared to be for their use.

Paterson v. Rush, supra, at 889.

Hope subdivided his land and sold the subdivided lots with reference to the subdivision maps. Although he did not specify the intended use of Lots 3-B and 5, the clear implication is that they were intended as rights-of-way for the adjoining lots. The size and shape of Lots 3-B and 5 preclude other possible uses. When Hope conveyed "dominant" Lots 2, 3-A, and 3-C, he also conveyed undivided fractional interests in "servient" Lots 3-B and 5. The fact that these fractional interests were conveyed with Lot 2 to Bahr and, ultimately, the Henmis, distinguishes the present case from the cases cited by the Sawyers. In Honolulu Memorial Park, Inc. v. City and County of Honolulu, 50 Haw. 189, 436 P.2d 207 (1967); Moore v. Henricksen, 282 Minn. 509, 165 N.W.2d 209 (1968); and Goldstein v. Beal, 317 Mass. 750, 59 N.E.2d 712 (1945), the defendants claimed easements over lands owned by the plaintiffs. In the present case, the Henmis claim an easement over land in which their tenancy-in-common is unquestioned.

Since there is nothing to show that the parties intended them to be mere personal rights and since they are useful adjuncts of the dominant lots, the easements for pedestrian and utility purposes are appurtenant to the dominant lots. Tsunoda v. Young Sun Kow, 23 Haw. 660 (1917); Allingham v. Nelson, 6 Kan.App.2d 294, 627 P.2d 1179 (1981); 25 Am.Jur.2d Easements and Licenses § 13 (1966). These appurtenant easements ran with the dominant lots, and the conveyance of the latter included the former even though not referred to in the instrument of transfer. Peck v. Bailey, 8 Haw. 658 (1867); 25 Am.Jur.2d Easements and Licenses § 95 (1966).

The Sawyers also claim that the Henmis have abandoned the pedestrian aspects of the easement due to disuse. The party alleging abandonment must prove it "by clear and unequivocal evidence of decisive and conclusive acts." Goo v. Young, 36 Haw. 132, 149 (1942). A mere showing of...